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Saudi Basic Industries Corp. v. Mobil Yanbu Petrochemical Co.1/14/2005
claims.
On appeal, SABIC contends that the trial judge erred in denying its pre (and post) verdict motions for judgment because: (1) as a matter of law Article 6.3 does not apply to SABIC's provision of the Unipol(r) PE technology to the joint venture partnerships; rather, the parties intended that Article 6.1-which does not require a cost "pass through"-would control; and (2) in any event, the joint venture agreements do not govern what royalties SABIC could charge for providing the Unipol(r) PE technology to the joint venture partnerships. The reason (SABIC argues) is that the parties intended that the later-executed Unipol(r) PE/UCC technology sublicense agreements between SABIC and the joint venture partnerships-which have no "pass through" provision-would supersede and repeal any application of Article 6.3 of the joint venture agreements.
To the extent SABIC claims that the trial court determined the applicable law incorrectly, or instructed the jury erroneously, or failed to grant judgment as a matter of law because of legally insufficient evidence, we review those claims de novo for legal error. We will not disturb a jury's findings of fact on the basis of legally insufficient evidence, however, if there is "any competent evidence upon which the verdict could reasonably be based." Having applied the appropriate review standards to the facts and evidence of record, we discern no error of law in the trial court's rulings, or any legal insufficiency of evidence to support the jury verdict, with respect to ExxonMobil's breach of contract claims.
(a) SABIC's Argument That Article 6.3 Does Not Apply To ExxonMobil's Claims For Breach of Contract
Our analysis of SABIC's first challenge to the judgment for breach of contract starts with the uncontested fact that when SABIC furnished the Unipol(r) PE technology to the joint venture partnerships, SABIC did not limit its royalty charges to the partnerships to a "pass through" of its own cost to procure that technology from UCC. It is undisputed that SABIC charged the partnerships a "mark up" over and above its actual cost. The record discloses substantial evidence (based upon which the jury found as fact) that SABIC had concealed those markups from ExxonMobil for almost two decades.
SABIC virtually concedes that those facts would constitute a violation of Article 6.3 of the joint venture agreements, if (as the jury found) Article 6.3 governs the overcharge breach of contract claims. SABIC can hardly contend otherwise, as Article 6.3 of the Yanpet agreement directs that "to the extent either Partner or any Affiliate thereof procures patents, processes, and other licensing rights of third parties, and sublicenses such rights to the Partnership, it shall not receive any remuneration other than actual cost incurred in acquiring and sublicensing such right." Article 6.3 of the Kemya joint venture agreement is substantially identical. SABIC's position must therefore be (and indeed is) that Article 6.3 does not govern the overcharge claims. That position contains two prongs.
SABIC first argues, as it did in the Superior Court, that Article 6.3 does not apply to the Unipol(r) PE technology that SABIC licensed to the joint ventures. According to SABIC, Article 6.3, by its plain terms, applies only to partner-licensed polyethylene technology that is then sublicensed to the joint ventures, as distinguished from partner-owned polyethylene technology that is then licensed to the joint venture. SABIC argues that the parties intended that Article 6.1(a)-which does not require a cost pass-through but instead allows the parties to negotiate transaction-specific financial terms-would apply to partner-owned polyeth
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